American President Lines, Ltd. v. Welch
| Decision Date | 26 May 1967 |
| Docket Number | No. 21016.,21016. |
| Citation | 377 F.2d 501 |
| Parties | AMERICAN PRESIDENT LINES, LTD., a corporation, Appellant and Cross-Appellee, v. E. B. WELCH, Appellee and Cross-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Graydon S. Staring, Frederick W. Wentker, Jr., Lillick, Geary, Wheat, Adams & Charles, San Francisco, Cal., for appellant.
Martin J. Jarvis, Eugene A. Brodsky, Jarvis, Miller & Stender, San Francisco, Cal., for appellee.
Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.
E. B. Welch, appellee herein, filed an action in the United States District Court for the Northern District of California, Southern Division, against American President Lines, Ltd., appellant herein, seeking damages for injuries received while he was a seaman aboard the SS PRESIDENT ROOSEVELT, a vessel owned by appellant. Appellee alleged that his injuries were proximately caused by the unseaworthiness of appellant's vessel in that appellant did not supply appellee "sufficient personnel or assistance necessary for the performance of his said duties aboard said vessel." The district court, without a jury, found for appellee holding that his damages amounted to $38,450, and that his own negligence contributed 50 per cent to the accident. Judgment was entered against appellant in the sum of $19,225.00. Appellant appeals from the finding of unseaworthiness, and appellee cross-appeals from the finding of contributory negligence.
Appellee is a merchant seaman holding a third assistant engineer's license for diesel vessels and a chief engineer's license for steam vessels. From April, 1962, to the latter part of February, 1964, he was employed as a third assistant engineer aboard the SS PRESIDENT ROOSEVELT.
On February 18, 1964, while the vessel was enroute from San Francisco to Los Angeles, it was discovered that the standby lube oil pump in the lower engine room was not operating properly. This pump cuts in service if the main lube oil pump fails and must function properly before the ship can safely proceed to sea. On the morning of February 19, 1964, when the vessel was in Los Angeles Harbor, the first assistant engineer, appellee's superior officer, instructed appellee to dismantle the pump and make the necessary repairs. Repairing the pump required removing its two pistons and crosshead and carrying them from the lower engine room to the ship's machine shop. Each part would have to be carried from the lower engine room up a ladder of approximately ten steps, over a six or eight-inch coaming, then along approximately 25 feet past a storekeeper's door, then up three or four steps and over another coaming six or eight inches high, and then approximately ten feet more into the machine shop. The testimony was that the operation of dismantling the pump and carrying each piston and the crosshead to the machine shop is a two-man job. There was no contrary testimony upon this issue. Each piston weighs in excess of a hundred pounds. There was testimony estimating the weight of the crosshead at over a hundred pounds, but during the trial appellant produced evidence showing that it weighed forty-two pounds.
During the morning work in dismantling the pump an oiler was assigned to assist appellee. However, at noon his watch was finished and he left the job. When the oiler left, the pistons and the crosshead had been removed from the pump but were still in the lower engine room. After lunch appellee returned to the work alone. He first carried one piston from the lower engine room to the machine shop over the route above described, taking it up the ladder one step at a time. When the piston reached the machine shop it was examined and returned to the lower engine room over the same route. Appellee then took the second piston and carried it up in the same way to the machine shop where it too was checked. He then took this piston back again to the lower engine room. Appellee testified that after this his back felt tight and "it was a pretty heavy lift." Appellee then testified that he took the crosshead up toward the machine shop and on the way he heard a slight "pop" in his lower back. He did not feel any immediate pain, and after putting the crosshead down for a few moments, he "kind of straightened" himself out and picked up the crosshead, and continued to the machine shop. In the machine shop he did certain work upon the crosshead.
He left the crosshead in the machine shop for further repair and went back to the engine room. His back was beginning to pain him at that time and he reported that fact to his superior, the second engineer. After resting for a while he went up to his quarters. About four o'clock he reported his condition to the first engineer and was told to knock off for the rest of the day. The ship sailed the next day for Honolulu, and appellee stayed in his bed during the trip. He testified that he was suffering pain in his right hip and right leg. He was given medical attention by the ship's doctor during the trip. In Honolulu appellee received further medical and hospital care, and was certified as unfit for duty. Transportation was arranged for him to fly to San Francisco where he received medical attention at the Public Health Service Marine Hospital. He remained in the hospital for 17 or 18 days and was in traction. Upon discharge he received out-patient care and was finally declared permanently unfit for sea duty in October, 1964. He remained in that status up until the time of trial.
The injuries received by appellee on February 19, 1964, were diagnosed as "a lateral compression fracture of the body of his third lumbar vertebra with nerve root compression and irritation at that level of his spine, causing him much pain and resulting weakness and atrophy of the musculature of his right leg."
Among others, the district judge made the following findings:
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